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President Obama's draft executive order requiring government contractors to disclose their political donations came under attack on two fronts today--in a joint hearing by the House Committee on Oversight and Government Reform and the House Committee on Small Business, and in a letter from a bipartisan quartet in the Senate.

The draft EO requires that "all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the two years prior to submission of their offer." This was the White House's answer to the failure of the Disclose Act in the Senate--a modest attempt to shine light on the political activities of government contractors, the only sector over which the executive might require such disclosure without the aid of Congress. (The Disclose Act itself was a modest attempt to shine light on the political activities of corporations in the wake of Citizens United v. FEC, the Supreme Court case last term that overturned spending limits on corporations and labor unions under the First Amendment, but that upheld disclosure requirements.)

But the draft EO hit a roadblock: Charges in Congress that it would polticize government contracting, and allow the administration to target its political enemies.

Those worries hit a high point today in the House joint committee hearing, titled "Politicizing Procurement: Will President Obama's Proposal Curb Free Speech and Hurt Small Business?" The hearing was stacked with opponents of the draft EO, all of whom testified that the draft EO would, well, curb free speech and hurt small business. The lone supporter (other than the OMB rep), representing the Women's Chamber of Commerce, testified that the draft EO would increase transparency and ensure that procurement is based on "fair competition and not unscrupulous, undisclosed "pay to play" campaign donations." The administration sent OMB Administrator for Federal Procurement Policy Daniel Gordon as a compromise fter Jack Lew, the head of OMB, declined to appear (sparking threats of subpoena by the committee chairs).

At the same time, Senators Joe Lieberman, Claire McCaskill, Susan Collins, and Rob Portman sent a letter to President Obama opposing the draft EO because it would politicize procurement.

There were even some murmurings that President Obama lacked authority to issue the EO--that it wasn't sufficiently tied to federal procurement to come within executive authority.

The Hill provides political coverage here. We last posted on disclosure in the wake of Citizens Unitedhere, on Rep. Van Hollen's suit against the FEC.

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions. On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases: Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010).

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared.

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts." Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court. It is what can make Constitutional Law courses so challenging.

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article." Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling." With three controversial cases, Segall mounts an argument that many will find persuasive.

The AALS Section of Constitutional Law will hold two panels at the AALS Annual Meeting, January 4-8, 2012, in Washington, D.C.

The section is inviting submission of abstracts for scholars who would like to be part of a panel on either of the issues set out below. Junior scholars, women, and faculty of color are especially invited to submit an abstract. Each abstract should be no more than five pages. One or more speakers at each panel will be selected from those submitting abstracts. Abstracts should be submitted (electronically, by Word or rtf document) by June 30, 2011 to Professor Garrett Epps, President, AALS Section of Constitutional Law University of Baltimore School of Law, 1415 Maryland Ave, Baltimore MD 21201 email: gepps AT ubalt.edu

PANEL ONE: American Citizenship in the 21st Century

American citizenship, whether acquired by birth or naturalization, has become intensely controversial in the past five years. Two provisions of the Constitution relate to it most directly: the requirement in Article II that the President must be a “natural born citizen” (coupled with varying requirements for length of citizenship for service in the House and Senate), and the Citizenship Clause of the Fourteenth Amendment, which recognizes birthright citizenship for “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” However, unlike in many contemporary constitutions, there is no complete constitutional definition of citizenship or description of its privileges, responsibilities, or qualities. Much of the process of its acquisition or recognition is governed by statutes passed under Congress’ authority “to establish an uniform rule of naturalization.” Congress and state legislatures are debating proposals to amend the Fourteenth Amendment to eliminate birthright citizenship or to seek to do the same thing by state or federal statute. Others insist that Congress lacks authority to vary the current rule, and that states have no role to play in regulating or determining citizenship. Many believe that this issue is sure to come before the federal courts in the near future. In the immigration context, proposals to provide a “path to citizenship” for undocumented aliens are seen by some as indispensable to comprehensive immigration reform, while others decry any measure to do this as “amnesty.” In either case, the presence of as many as 12 million undocumented aliens exerts a significant effect on the machinery designed to regulate immigration and citizenship, and may by default create in practical terms two tiers of citizenship, reviving the old common-law concept of the “denizen.” Beyond this, the nature of American citizenship is contested at the philosophical and political level, with arguments drawing on history, political theory, and comparative law and policy.

What does American citizenship mean today? How has its meaning changed over time? What is the future of the concept and the policy and legal apparatus that maintains it. Our first panel is open to participants who submit thought-provoking and original abstracts on any aspect of this issue, whether doctrinal, theoretical, economic, comparative, or empirical.

PANEL TWO: Article V: “To All Intents and Purposes”

Proposals to amend the Constitution have arisen in a variety of context in the last decade, quickening in pace as the ideological gulf within our society widens. Activists of both parties have repeatedly called for specific amendments to change certain features of the Constitution or overturn Supreme Court interpretations of its meaning. Others, both on the right and left, have begun to organize a serious effort to spark a call from Congress for a new Constitutional Convention to propose amendments. Article V, the mechanisms setting up the amendment process, is little understood and seldom taught as part of the Constitutional Law curriculum. Many political scientists and scholars criticize Article V as requiring too great a consensus for a proposed amendments. Others express concern that the Convention mechanism, which has never been used, could open the political system to sudden radical change without adequate democratic participation and public deliberation. Quite remarkably, the most recent Amendment actually adopted (in 1992) was proposed by the First Congress in 1789, and approved by legislatures over a 200-year window, leading to suggestions that the Article V mechanism has inadequate limits on its workings.

How does Article V really work? How has its practical function changed since Madison proposed the first Amendments (many of which were not adopted; the others of which became the Bill of Rights)? What light is shed on it by the fact that the Convention designed two features in the Constitution that could never be amended? What can we learn from the two periods—the aftermath of the Civil War and the Progressive Era—when political movements and popular majorities made effective use of Article V? What are the perils and promises of the Convention mechanism? What is the role of Congress in the process? How does popular constitutionalism play into the process? Is it time to use Article V to amend Article V? Again, the Section invites abstracts on any aspect of Article V, again from a wide variety of perspectives, and including descriptive, analytical and normative work.

The National Labor Relations Board filed suit last week against the State of Arizona challenging its constitutional provision that guarantees the right to vote by secret ballot for employee representation. The complaint alleges that Article 2, Section 37, of the Arizona Constitution--approved by Arizona voters just last November--is preempted by the National Labor Relations Act.

The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

But the National Labor Relations Act permits (but does not require) secret ballot elections only in certain circumstances. Otherwise, employees have the right to organize and to bargain collectively "through representatives of their own choosing." 29 U.S.C. Sec. 157.

The NLRB argues that the state constitution clashes with the Act:

Because Article 2, Section 37, of Arizona's constitution provides that a secret ballot election is "guaranteed" wherever federal law "permits or requires elections" (emphasis supplied), Article 2, Section 37, requires elections where federal law does not and thereby deprives private sector employees of their right to pursue the other options permitted by federal law to designate, select, or authorize representatives of their own choosing and to secure their employers' voluntary recognition of such representatives.

We posted on other states' efforts to limit collective bargaining rights here.

Retired Supreme Court Justice JP Stevens will be adding a book to his considerable publications: Five Chiefs has been announced by the publisher Little, Brown with a pub date of the First Monday in October.

When he resigned last June, Justice Stevens was the third longest serving Justice in American history (1975-2010)--only Justice William O. Douglas, whom Stevens succeeded, and Stephen Field have served on the Court for a longer time.

In Five Chiefs, Justice Stevens captures the inner workings of the Supreme Court via his personal experiences with the five Chief Justices--Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts-that he interacted with. He reminisces of being a law clerk for Vinson; a practicing lawyer for Warren; a circuit judge and junior justice for Burger; a contemporary colleague of Rehnquist; and a colleague of current Chief Justice John Roberts. Along the way, he will discuss his views of some the most significant cases that have been decided by the Court from Vinson, who became Chief Justice in 1946 when Truman was President, to Roberts, who became Chief Justice in 2005.

Packed with interesting anecdotes and stories about what goes on inside the Court--how the Justices organize their work, their relationships with one another, how clerks are picked, and much more--Five Chiefs is an unprecedented and historically significant look at the highest court in the United States.